House approves rewrite of FOIA law

Bruce Rushton

Wednesday

May 27, 2009 at 12:01 AMMay 27, 2009 at 5:20 AM

A measure aiming to strengthen Illinois law on open records requests has cleared its first major hurdle in the legislature.

One week after legislative leaders watered down a rewrite of the state Freedom of Information Act, a new draft has won praise from open-government advocates and unanimous approval from the state House of Representatives.

“In the overall scheme of things, it’s a good bill,” said Don Craven, acting director of the Illinois Press Association. “Was the loud and immediate response (to last week’s legislative rewrite) helpful? I think it absolutely was.”

The House voted 116-0 on Wednesday in support of the new draft. The proposal still must be approved by the Illinois Senate and signed by the governor to be enacted into law. This spring’s legislative session is scheduled to end Sunday.

The press association led outcries last week when House Democrats released an FOIA version that contained fewer teeth than a bill pushed by Attorney General Lisa Madigan, who has been promising to strengthen the state’s public-records law since she was elected seven years ago.

The bill unveiled Wednesday restores several provisions that had been stripped out by lawmakers.

“We’re trying to open things up,” said House Speaker Michael Madigan, D-Chicago, who is Lisa Madigan's father.

“It’s been a very, very long process,” said Cara Smith, the attorney general’s deputy chief of staff, who has shepherded the bill past interest groups and then in the Statehouse. “We ended up with a bill that got stronger in the last few days instead of being negotiated down. In the end, we have really crafted a law that will accomplish tremendous change in terms of transparency.”

Craven, who has said government culture as well as the law needs to change before public officials in Illinois start acting as if government records aren’t proprietary, sounded optimistic about the chances that the bill, if it becomes law, will make a difference.

“I can only hope,” Craven said.

Groups ranging from the Chicago-based Better Government Association to the Illinois Reform Commission called for FOIA reform this year.

Smith stopped short of crediting former Gov. Rod Blagojevich, whose demise fueled FOIA reform fires, for getting a bill through legislative leadership that open-government groups can support. But the Blagojevich saga resulted in a so-called Blago amendment, a clause stating that only law enforcement agencies can withhold records on the grounds that disclosure would jeopardize an ongoing investigation.

Blagojevich had cited the ongoing-investigation exemption in refusing to release federal subpoenas received by his office. He then spent more than $100,000 on lawyers in fruitless court battles when requesters sued.

“I think we got a much stronger bill courtesy of the ex-governor,” Smith said. “I don’t know if we would have had as much support (without the Blagojevich scandal).”

The new measure would boost the fines imposed for FOIA violations, but eliminates misdemeanor criminal penalties that were included in the attorney general’s first version of the plan.

Smith and Craven said no one could come up with an instance of criminal prosecution under the state Open Meetings Act, which contains criminal penalties.

Under the current law, government officials often refuse to release anything held in an employee’s personnel file. The new bill does not contain the words “personnel file,” and privacy definitions have been tightened. Craven said the proposed law makes clear that disciplinary action against an employee must be made public once it is final.

Anders Lindall, spokesman for the American Federation of State, County and Municipal Employees Council 31, which represents state workers, said he wasn’t prepared to comment on the union’s position on the FOIA bill. But he said AFSCME knows what it’s like to be stonewalled.

“We’ve seen it from the other side as well, especially under the last administration -- trying to get information that we need to develop public policy and that type of thing,” Lindall said.

The bill isn’t perfect in the eyes of the press association.

Under current law, government can withhold documents that are considered drafts, and the bill doesn’t change that. Smith said the governor’s office was opposed to changing that section, which critics say makes it too easy for government to keep secrets.

“I think everyone recognizes that there needs to be changes to that language,” Craven said. “We suggested language that didn’t make it in, so we’ll be back next year. It’s a process.”

Provisions for a public-access counselor to decide disputes instead of a judge are one of the most important changes, Smith said. Under current law, government agencies have the upper hand, and finding lawyers to take FOIA cases can be difficult for ordinary citizens, she said.

“I think it’s a tremendous bill,” Smith said. “You’d find no dispute about how poorly written our current law is and how it allowed tremendous abuses.”

Ryan Keith of the State Capitol Bureau contributed to this report. Bruce Rushton can be reached at (217) 788-1542 or bruce.rushton@sj-r.com.

Proposed FOIA provisions

Under the Illinois Freedom of Information Act proposal that passed the Illinois House Wednesday and now is before the Senate:

*A public access counselor within the attorney general’s office would referee FOIA disputes and issue binding opinions when government and people seeking information disagree over what should be made public. If the loser wants to continue the fight, it would be at his or her expense in a courtroom.

Under current law, requesters must sue if they disagree with a decision to withhold records. Under the bill, the public access counselor would have to approve any decision to withhold a record based on privacy concerns or because an agency believes it is a preliminary document and therefore not subject to disclosure.

*Requesters who prevail in court battles would be entitled to attorneys’ fees. The current law makes awarding of legal fees optional.

*The first 50 pages of records would be free. Government agencies now can charge copying fees for every page.

*If a record exists in electronic format and requesters ask for it in that form, agencies would have to comply. Under last week’s legislative re-write, agencies could have provided paper copies and charged copying fees.

*Fines for FOIA violations would range from $2,500 to $5,000. The current law contains no penalties, and fines were smaller in Attorney General Lisa Madigan’s original rewrite. However, lawmakers stripped out a provision in the attorney general’s proposal that would have made FOIA violations Class C misdemeanors.

*The personnel-file exemption, which governments often cite in refusing to release any information contained in personnel files, is eliminated. However, language specifying how and when public employee disciplinary records can be made public remains in the bill. A clause from the current law, which says information bearing on the public duties of a public employee cannot be considered private, also remains in the bill.

*The deadline for responding to a FOIA request is shortened from seven to five days, and agencies that don’t meet the deadline lose their right to charge for records or claim that requests are too burdensome to meet.

*Agencies would have to designate FOIA officers who must receive training on FOIA requirements, and training would have to be renewed annually. The public access counselor’s office would be responsible for training programs.

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